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Hosting Talk: Loopholes or Lifelines?

Hosting Talk: Loopholes or Lifelines?

March 23, 2014
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" Imperfect though they may be, the DMCA and CDA safe-harbor provisions provide essential Internet regulations, particularly with the explosive popularity of self-publishing and social media use. "

It’s not uncommon to hear many within the online adult entertainment industry adopt less-than-positive opinions regarding Section 512 of the Digital Millennium Copyright Act (DMCA) and Section 230 of the Communications Decency Act (CDA). Put in place as crucial protection of ISPs and providers of third-party content, some rights-holders and webmasters consider these major pieces of legislation to be detrimental loopholes. But no matter what side of the fence you sit, sections 512 and 230 are essential to the function of the modern Internet and directly impact every Internet-based adult business.

Given the damaging effect of content piracy on the industry, it’s understandable why rights-holders and webmasters might take a dim view of the liability limitations of Internet Service Providers, but it’s important to acknowledge that ISPs and a variety of other web-based businesses would be sunk without them.

The full importance and impact of sections 512 and 230 is beyond the scope of this column, and something that is best addressed by an attorney intimately familiar with this area of cyberlaw. Having said that, what every layman who operates a web-based business can (and should) understand is that the primary function of these safe harbor provisions is to offer a layer of protection for ISPs against the illegal acts of third-parties who make use of their networks and resources.

It’s not just top-level ISPs and hosting companies that are safeguarded by these laws, but also a wide range of “interactive computer service providers,” including message boards, social networking sites, providers of user-generated content (like YouTube) and essentially any other online service that publishes third-party content.

For example, if you run an online discussion forum, and one of your users posts defamatory and/or libelous statements about another business, Section 230 helps to shield your business from liability. Under this law, you are not considered directly responsible for the actions of users whom you, the site owner, cannot control. And as anyone with message board experience can attest, operating online discussion forums without the existence of Section 230 would be nearly impossible.

But that doesn’t mean you’re 100 percent off the hook. While hosting providers, ISPs and other entities can claim no prior knowledge of the offending materials, they must take action of some kind once notified of the problem.

In some cases, a hosting company will receive a notice alleging copyright infringement on the part of a client. While the host is not in a position to immediately determine its validity, the DMCA’s Section 512 sets a defined procedure for handling the complaint, including noticing and counter-noticing, and provides ISPs with similar rules.

Imperfect though they may be, the DMCA and CDA safe-harbor provisions provide essential Internet regulations, particularly with the explosive popularity of self-publishing and social media use. While many content owners and rights-holders see them as a way out for cyber-criminals, it’s important to note that many legitimate, useful and extremely popular online services and websites — including the very hosting services that these folks use to house their sites — simply could not exist without them. In that sense, these “loopholes” end up looking a lot more like lifelines.

Steven Daris is CEO and co-founder of Red Apple Media (RedAppleMedia.com), a managed hosting, ecommerce and video streaming solutions provider.


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